Judges matter: Control of the judiciary is too important for
gimmicks
By W. James Antle III
web posted November 10, 2003
According to the Washington Post, Republicans will be stashing
food and hauling cots out onto the Senate floor for a 30-hour
"Justice for Judges Marathon" to protest recent Democratic
filibusters against several of President Bush's judicial nominees.
But you won't see Ted Kennedy reading aloud from the Yellow
Pages in the Senate chambers like a scene from Mr. Smith Goes
to Washington anytime soon. Senate Republican leaders aren't
forcing the Democrats to mount a traditional filibuster. Instead
this C-SPAN slumber party is little more than a gimmick to
placate frustrated conservatives who want to see action from
Senate Majority Leader Bill Frist and his colleagues.
The Post story is pretty clearly stacked against the Republicans
in its assumptions and quotes, at least by my reading.
Nevertheless, it is difficult to avoid the conclusion that its writer is
correct to say of the marathon "neither side expects the spectacle
to change a single vote or resolve the bitter impasse" in one place
and "no one in the Capitol expects it to solve anything" in
another.
Democratic pollster Mark Mellman was quoted as saying that
judicial nominations consistently rank dead last among voter
concerns and that attempts to raise public interest in the issue
simply constitute "wishful thinking and gratifying the base." In
terms of public opinion, this may well be true. There are few
things that are more "inside baseball" than Beltway bickering
over appointments to positions that receive relatively little day-
to-day attention, especially when these debates usually turn on
sensationalistic personal scandals and obscure, often ancient
quotes dredged up and ripped out of context in an effort to rile
up some interest group.
But for the millions of moderate-to-conservative voters in Middle
America, there are few things more important to the outcome of
issues they do care about than the shape of the federal judiciary.
It has become a cliché among conservatives to talk about judges
"legislating from the bench" or the "imperial judiciary," but both
are precisely what we are faced with. The courts have elevated
themselves above the executive and judicial branches and
claimed the power to decide our most contentious social issues
for us.
Consider the recently enacted ban on partial-birth abortions.
This legislation passed the Senate by a vote of 64 to 34 and the
House by 281 to 142. Various polls have recorded public
support for the measure as high as 70 percent. Due to the nature
of this procedure, which entails the partial delivery of the fetus
prior to its killing, even many people who generally support legal
abortion agree that it should be illegal. Many pro-choice
members of Congress voted for the ban in order to end a
practice the late pro-choice Sen. Daniel Patrick Moynihan
described as "three-fifths infanticide."
Since President Bush signed this bill into law, three federal
judges have imposed temporary restraining orders effectively
blocking its enforcement. These federal district judges in New
York, California and Nebraska relied upon the same anfractuous
constitutional reading that has characterized abortion
jurisprudence since Roe v. Wade was invented 30 years ago.
Judge Richard Kopf in the court in Nebraska even second-
guessed the witnesses Congress called to testify in hearings on
the bill and the conduct of congressional debate over it.
This is not the first time federal courts have taken it upon
themselves to correct the errant judgment of the American
people and their elected representatives on the basis of thinly
justified legal rationales. Think back to 1994, when California
passed Proposition 187, a ballot initiative designed to deny most
public services to illegal immigrants, with 59 percent of the vote.
Although portrayed in the hostile media at the time as a rebellion
of angry white males, Prop 187 also received strong support
from a majority of blacks and Asians as well as a significant
minority of Hispanics. Contrary to conventional wisdom, Pete
Wilson's support for this initiative actually brought him back from
the political dead and swept him to a come-from-behind
reelection victory.
A sizeable majority of Californians decided to deal with the
staggering costs imposed by porous borders – and the federal
government's manifest failure to enforce existing immigration laws
– by emphasizing the distinction between legal and illegal
immigration and deny their tax dollars to those here illegally.
Nearly a decade later, mass illegal immigration continues to exert
growing pressure on the state's overextended social services
infrastructure and absorb growing amounts of taxpayer money.
This fact is one of several to create the conditions that led to
Gov. Gray Davis famously being recalled and replaced with
Arnold Schwarzenegger not so long ago. One possible reason
that this problem not only still exists but has gotten worse is that
the Ninth Circuit Federal Appeals Court scuttled the voters'
attempt to deal with it through Proposition 187. (Davis
conveniently decided to let the issue end there.)
You would think that voters and taxpayers would have a right to
democratically decide who is eligible for public benefits. It is not
clear where in the U.S. Constitution they are required to offer
their wealth to non-citizens whose very presence in this country
violates American immigration law. But the Ninth Circuit Federal
Appeals Court decided differently.
From disastrous forced busing schemes decades ago to the
imposition of same-sex marriage in the foreseeable future, judges
have seized the power to impose their agendas on the American
people. Liberals have particularly benefited from this
arrangement because they have prevailed in policy objectives
that almost certainly would have been thwarted at the ballot box
or through the legislative process.
Judicial review as a check against unconstitutional government
activity is perfectly consistent with the Framers' intent. But the
kind of detailed legislative decision-making courts have engaged
in is not an effort to reign in unconstitutional usurpations of power
by the executive or legislative branches; it is in fact an additional
layer of usurpation itself. Read some these decisions and decide
for yourself whether their authors saw themselves as neutral
interpreters of the Constitution or, in the words of that "extreme"
Bush nominee Janice Rogers Brown, "philosopher-kings."
This is why the composition of the judiciary ought to be an issue
of paramount importance to conservatives and the Republican
politicians they vote for. This isn't something that should only be
dealt with through photo-ops and publicity stunts aimed at bored
C-SPAN viewers. Conservatives cannot accomplish any of the
things they care about with a hostile federal judiciary staffed by
people who believe the power of judicial review confers upon
them the power to judge the wisdom of existing policies and
make new ones in their place.
"Marathons" and endless proposed constitutional amendments
that seek to address constitutionally dubious court rulings
piecemeal simply won't suffice. Republicans must play hardball
by forcing the Democrats to follow through with real filibusters
and take whatever means are necessary to insure that judicial
nominees like Miguel Estrada, William Pryor and Janice Rogers
Brown are confirmed by the Senate, or at least granted the
courtesy of straight up-or-down votes. Perhaps they should even
contemplate more radical solutions, including the exercise of their
constitutional prerogative to limit the courts' jurisdiction over
certain issues and otherwise reign in the correctly labeled
imperial judiciary.
Such efforts will no doubt be portrayed as an assault on the
Constitution by liberal activists, as well as a denial of various
victim groups' fundamental rights. But the truth is that making
sure that the Founders' system of checks and balances applies to
the judiciary as much as the other branches is currently the best
way to respect the Constitution and its guarantee of real
individual rights. It is vital to the project of American liberty that
we restore the Constitution as the law to which judges are bound
rather than a template for their creative license.
Who gets to be a federal judge is not a trivial concern to be left
to political junkies. In our present climate, it determines the laws
we live under and maybe even the country we will be.
Conservatives must demand that Republican senators treat the
issue with exactly that level of seriousness. Liberal advocacy
groups have the Democrats on notice as to what is at stake. We
can no longer afford to play the game any differently.
W. James Antle III is a senior editor for Enter Stage Right.
Enter Stage Right -- http://www.enterstageright.com